IS A POLITICAL “BELIEF” A PHILOSOPHICAL BELIEF? POSSIBLY, FOLLOWING EUROPEAN COURT OF HUMAN RIGHTS DECISION
SummaryThe European Court of Human Rights (ECtHR) has held that the United Kingdom breached the European Convention on Human Rights (ECHR) by failing to take “reasonable and appropriate” measures to protect employees, including those with less than one year's service, from being dismissed on grounds of their political opinion or affiliation – even if the association’s views “offend shock or disturb”.
The European Court of Human Rights (ECtHR) has held that the United Kingdom breached the European Convention on Human Rights (ECHR) by failing to take "reasonable and appropriate" measures to protect employees, including those with less than one year's service, from being dismissed on grounds of their political opinion or affiliation – even if the association’s views "offend shock or disturb". (REDFEARN –V- UK)
R worked as a bus driver transporting passengers in the Bradford area. In June 2004, he was elected as a local councillor for the BNP. Concerns were raised by unions about whether R’s political affiliations placed him in conflict with his job, given that the majority of his passengers were Asian; however, no public complaint was made. His employers accepted the union’s objections and summarily dismissed R. As R had been employed for less than 12 months he could not argue unfair dismissal, so instead, he argued his dismissal constituted less favourable treatment on racial grounds and that, since the BNP was at that time a “whites only party”, his dismissal also constituted indirect discrimination.
The UK Courts found that R was not treated less favourably on the grounds that he was white, but on the basis of his membership of the BNP and his employer would have applied the same approach to any other single race party. In the Court's view, R's complaint was of discrimination on political grounds which fell outside the scope of anti discrimination laws at the time. Any argument that his dismissal breached the Human Rights Act 1998 also failed as he was employed by a private employer and not a public authority.
EUROPEAN COURT OF HUMAN RIGHTS
R then lodged a claim at the ECtHR alleging that his dismissal had disproportionately interfered with his right to freedom of assembly and association under Article 11 and his right to freedom of expression under Article 10 of the ECHR.
The ECtHR held that national authorities must provide protection where a private employer dismisses an individual because of their membership of a political party or at least provide the means for an independent evaluation of the proportionality of such a dismissal. The UK, the Court held, did not offer sufficient protection to those dismissed for their political beliefs as employees with less than 12 months’ service had no unfair dismissal rights and also the Race Relations Act 1976 (then in force) did not offer any protection form breaches of Article 11 rights.
The Court also took into account:
- R's previous good employment record,
- no workplace issue concerning his BNP membership had arisen,
- R’s age when dismissed and his ability to find other work; and
- the fact the employer had failed to consider any alternative “non customer facing” work for him where any conflict (if it existed) would have been avoided.
In the opinion of the ECtHR, domestic courts or tribunals must be allowed to consider, in the circumstances of a particular case, whether the interests of the employer should prevail over an employee's Article 11 rights - regardless of the employee’s length of service.
What will this mean to future cases? Case law in the UK has always supported the position that membership of a political party is not, of itself, grounds for discrimination. Under the Equality Act 2010, section 10(2) protects against discrimination on the grounds of a person’s religion, religious belief, or philosophical belief. Following this decision, a claimant may be able to argue that membership of a political party – even one whose views “shock” - qualifies as a “philosophical belief”.
WHAT SHOULD EMPLOYERS DO?
If employers are faced with a situation where a person’s political views could conflict with their role, the key point is not to make any “knee-jerk” decisions but to consider all the options. In this case, the employers immediately dismissed R following union concerns – there had been no passenger complaint, no external protest and R had been an exemplary employee. Any situation will depend on its facts; however, employers should look at alternative roles where an employee would not be in conflict (if one arises) and discuss with the employee how they think their political affiliation might have an impact on their role and what steps they (and you) could take to minimize them. Be fair and consistent, balancing the rights of the employee against the reputation/concerns of the employer, and avoid any preconceptions.